The cry, “You can’t legislate morality” is, of course, false. That is exactly what law does, as Esolen points out.

All laws bear some relation, however distant, to a moral evaluation of good and bad. We cannot escape making moral distinctions. One man’s theft is another man’s redistribution of income. One man’s defense of family honor is another man’s murder. Even people who reduce law to utilitarian calculations cannot evade this truth.

He then discusses the issue of Prohibition. The 18th Amendment outlawed the sale, manufacture and transportation of alcohol. It was meant to curtail drinking, which in some parts of the country had reached epidemic proportions. And Prohibition worked: people drank less. Many people supported the amendment. Esolen asks what Prohibition taught us about “legislating morality:”

That amendment inserted into the Constitution a law that neither protected fundamental rights nor adjusted the mechanics of governance. It was a radical break from tradition. It is crucial to understand this. It took a juridical break from tradition to obliterate the customs, the lived traditions, of the American people and their forebears.

The issue, Esolen says, it not that alcohol was problematic, or that Prohibition tried to address the problem. No, the problem was who was being asked to do what:

It was an attempt to call on the national government, that lumbering giant, as Big Daddy to keep little daddy in his place. It was a national “answer” for a local problem, even a domestic problem, as if one were to ask the United Nations to impose a curfew on one’s teenager. That was a first in American history. Indeed, the people who campaigned for Prohibition knew it was so, else they would not have taken the extraordinary trouble to pass a constitutional amendment. Prohibition was repealed, but the precedent was not. Now we expect the national government to look to local problems, even domestic problems. No one blinks when that same government decides what goes on in your child’s classroom and what kind of Christmas display you can have in your borough building. Prohibition set the stage for national scrutiny of the folkways of everyday life.

Thus, Esolen summarizes, the “noble experiment” of Prohibition, despite it being repealed, set a precedent: big government is needed to solve our problems: “We have a Prohibitionary State that gives license to all kinds of evil, but that regulates and restricts actions that are not evil, to manage the chaos that results from the license.”